How Does A Stay of Adjudication Impact Immigration?


Recently I was asked the following question:

I'm considering accepting a "Stay of Adjudication" plea, in a pending criminal sexual conduct case.  I also have a pending asylum application.  I need to know, would accepting this still type of plea make me removable as far as the DHS is concerned? Should I just risk trial then if my worst fear is deportation?

SHORT ANSWER:  

A "stay of adjudication" represents a full conviction for immigration purposes.  So if you plead guilty, with "stay of adjudication," to a criminal charge, you'll have to see if that criminal charge itself impacts immigration.  In your case, you would still be deportable with a Stay of Adjudication to criminal sexual conduct.  If it was a Stay of Adjud to disorderly conduct, then you would probably be fine.  A noncitizen should ALWAYS have an experienced immigration attorney help or represent them in a criminal charge!  There are just too many nuances!

ANSWER:

You pose the proper question for consideration.  Criminal sexual conduct is a deportable offense without opportunity for waiver.  If you're going to be deported either way, then the sentence in US court resulting from trial doesn't matter a whole lot does it?  Not enough defense attorneys recognize this. Many think, "well this is better than what we could've ever gotten in trial." That is irrelevant under the US Supreme Court decision in Padilla vs. Kentucky!  Attorneys don't get to make that choice for noncitizens--the clients do!
I recommend attaining an advisory opinion letter from an immigration attorney experienced in criminal defense. Your attorney should use this in negotiating a plea.  If the prosecutor isn't impressed with the extra punishment of deportation, then there have been instances where a motion before the court is made to dismiss because in the interests of justice.  Longshot but I think your attorney has a duty to try. 
Also, it shows how serious this issue is to the prosecutor because they often think noncitizens and their attorneys are just using the issue as a bluff. It is not a bluff, is a real issue, and unbelievable that 6 years after Padilla vs Kentucky attorneys still don't take their ineffective assistance of counsel seriously. 
In any case pushing it to trial also demonstrates the seriousness, and could also demonstrate the prosecutor's pig-headedness to the judge.  Now maybe your offense is so egregious to warrant deportation, but pushing the issue brings that into focus too. 
Most of all, as the Supreme Court said in Padilla, discussion of this extra consequence results in more just solutions. It's nerve-racking, and you'll have to pay your lawyer to prep for trial, but it's the necessary approach.
"Crimmigration" is a highly nuanced area of law.  Noncitizens and their defense attorneys are advised to seek the opinion of an immigration attorney at all costs!

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